0557

IN ARBITRATION

LOCAL ARB tTR IT1CIUNITED STATES POSTAL SERVICE, ) Case No . C1C-4F-D 31565

) Arbitrator 's File 84-90-1001and )

Date of Rearing :AMERICAN POSTAL .WORKERS UNION, ) December 4, 1984,ETTA HELMS, GYievant . ) Columbus, Ohio .

APPEARANCES

Arbitrator :

GERALD COHENAttorney at Law1221 Locust Street - Suite 600St . Louis, MO 63103

For the Postal Service :

For the

THOMAS D . DODDRIDGELabor Relations Representative (Field)Management Sectional Ctr . OfficeUnited States Postal ServiceColumbis , OH 43216

Union :

DAVID L. DIXONExecutive Vice PresidentAmerican Postal Workers UnionColumbus Area Local - AFL-CIOP . 0. Box 1111Columbus , OH 43216

Date of Award : January 4, 1985 .

TABLE OF CONTENTS

Page

Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Facts . . . . . . . . . . . . . . . . . . . . . . . 1

Position of the Postal Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Position of the Onion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g

Arbitrator ' s Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g

Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12h

IN ARBITRATION

UNITED STATES POSTAL SERVICE, )-Case No . CSC-4F-D 31565Arbitrator's File 84-90-1001

and )) Date of Hearing :

AMERICAN POSTAL WORKERS UNION, ) December 4, 1984,ETTA HELMS , Grievant . ) Columbus, Ohio .

OPINION

Issue

Was Grievant discharged for just cause? If not, what shall

the remedy be?

Facts

Grievant was removed from the Postal Service on June 5,

1984, for "absence without official leave" . Grievant had been an

MP/LSM clerk .

The first witness for the Postal Service was Grievant's

supervisor . He testified that Grievant had commenced an absence

from work on March 31, 1984 . Although Grievant had called in to

the Postal Service to report sick , she had given no medical docu-

mentation of the nature of her illness .

On April 51, 1984, the witness sent to Grievant a letter

which was headed , " EXTENDED ABSENCE LETTER" . It stated :

"You have been absent from work since 03-31-84, andhave not contacted this office since, concerningyour absence .

You are hereby instructed to notify this office imme-diately as to the reason for your extended absenceand when you expect to return to duty . This informa-tion must be substantiated by acceptable evidence thatyou were unable to perform your duties here at workduring the period of your absence .

Failure to comply with these instructions withinfive (5) days of your receipt of this letter, willresult in your removal from the United States PostalService ."

The witness said that, at the time he sent Grievant the

"Extended Absence Letter ", he had no information concerning the

reason for her absence .

When the witness had received no reply from Grievant by May

2, 1984, he authorized a Notice of Removal to be sent to Griev-

ant. It stated :

"You are hereby motif ed that you will be removed fromthe Postal Service on June 5, 1984 .

The reasons for this action are :

ABSENCE WITHOUT OFFICIAL LEAVE

You have been absent from work since March 31, 1984 .On 04-13-84, you received an extended absence letterdated 04-11-84 instructing you to notify this officeimmediately as to the reason for your extended absenceand when you expect to return to duty . You were alsoinstructed to substantiate your absences by submittingacceptable evidence that you were unable to performyour duties here at work during the period of absence .Furthermore , you were instructed to comply with theseinstructions within five (5) days of the receipt ofthe letter or you would be removed from the PostalService .

To date, ( 05-02-84 ), you have not contacted this off ice4'or submitted any documentation concerning your absenceand are being carried in an Absence Without OfficialLeave status .

Postal employees are required to be regular in atten-dance. Your continued absence reflects adversely onthe efficiency of the Postal Service and will not betolerated ."

After Grievant ' s removal from the Postal Service, the wit-

ness received a copy of a workers' compensation claim in which

Grievant reported that she had sustained a back injury . This :

report was on Form CA-7 .

On cross-examination , the witness testified that Grievant's

call-ins were not sufficient to satisfy the requirements of the

extended absence letter because they did not constitute documen-

tation necessary to substantiate an absence due to a medical con-

dition .

The witness said that he had never seen an accident report

(CA-2) which Grievant might have filed . Further, he did not talk

to the compensation office or to the nurse because he had never

seen, nor was he aware that Grievant had filed, a CA-2 .

On re-direct examination, the witness stated that he had

considered issuing lesser discipline than removal, but had

decided that, since Grievant was already absent from work, a

suspension would have no impact .

The witness further stated that an employee has a responsi-

bility after a three-day absence to provide documentation as to

the nature of the employee's illness, the anticipated length of

absence, and expected return-to-work date . Such information is

necessary to permit scheduling of employees .

Grievant had been disciplined for failure to file documen-

tation after three days, as required by the regulations . She had

not been disciplined for failure to call in .

The first witness for the Union had been a steward, a chief

steward, a vice president, and clerk craft director . He also

handled Step 2 grievance hearings . It was his belief that prog-

ressive discipline was always issued when AWOL charges were

leveled . In some 8 or 10 instances that he knew of progressive

discipline had been issued for absences .

The witness was not aware that regulations required docu-

mentation of absences after three days of absence . The practice

in the Columbus Post Office was to call in to the tour office

after an absence of three to five days . However, documentation

was never submitted to substantiate these absences until after

the employee returned to work .

The witness knew that Grievant had had a fitness-for-duty

examination on April 17, 1984 . Although the examination had

allowed her to return to work, an employee could still refuse to

work if the employee and/or the employee's own doctor felt it not

advisable .

The witness had never heard of a removal for the reasons

given in Grievant' s removal notice . He had heard of lesser dis-

cipline being issued, such as warning letters, for absence with-

out leave, but not termination .

On cross-examination , the witness testified that he was not

sure whether Grievant had contacted her supervisor or had merely

called in .

On one occasion , the witness had had an extended absence of

nine months, and had filed his documentation upon his return to

work .

The next witness for the Union was Grievant . She testified

that she had started to work for the Postal Service full time on

November 24, 1980 . Before that time, she had been a casual

employee in 1972, 1973 and 1974 . She was absent from the Postal

Service until 1980, at which time she had become a regular

employee . She was an MP/LSM operator .

On March 30 , 1984, she had sustained muscle spasms in her

lower back at work . She was sent to the nurse, who then sent her

to a nearby hospital emergency room . She returned to work, but

shortly thereafter left work because of back pain . She was

absent from work from March 30 until she received her notice of

termination on May 2, 1984 . However, she had called in to the

Post Office at the call-in office about every three days to

advise of her condition .

Grievant stated that she had filed a CA-2 (Notice of Injury)

on April 22, 1984, when she claimed an on-the-job injury . She

-had also brought a doctor's slip to the compensation office on

April 19 . She was supposed to have returned to work on April 27,

but did not do so because she was hospitalized at about that

time . She called in from the hospital to report that her return

date was uncertain . She was discharged from the hospital on

May 30 .

She received the notice of removal while she was in the

hospital . She did not send any further medical reports to the

Postal Service because of her removal .

The witness could have returned to work on June 3, 1984 . .

She was unable to return prior to that because of back problems .

She had had three instances of surgery for her back problems .

She now needs more surgery .

On cross-examination , the witness testified that she

believed that she was a good employee, and that she follows dir-

ections .

She introduced in evidence a number of medical reports, but

stated that she had never given them to the. Postal Service

because she had been terminated .

Grievant admitted receiving the extended absence letter,

but felt that she had responded to it by her call-ins .

On further cross-examination, she testified that her comp-

ensation claim had been rejected for lack of documentation, but

she insisted that she had given the proper documentation to her

attorney . She also stated that she had had two prior disciplin-

ary actions in connection with absences or failure to follow

instructions, but she had filed grievances, and her pay had been

given to her . The two disciplines were for failure to maintain

her schedule, and failure to perform her work in a safe manner .

The last witness for the Union was the president of the

Local, who stated that he had been a Postal Service employee

since 1970 . He had become a full-time Union employee in Febru-

ary, 1983 .

The practice in the Columbus Post Office was that, tf an

employee was absent for three days, he/she was to call in to

report being sick . This call was made to the tour superinten-

dent's office . It was only on return to work that documentation

was produced .

On cross-examination, the witness was asked if the Employee

& Labor Relations Manual sets out this procedure . He replied

that it did not, but that that was the way the procedure was done

there .

The Postal Service called a rebuttal witness who testified

that she was the supervisor of Delivery and Collections . She had

held the job for one year . Before that , she had been a window

clerk, and for 13 years had been in mail processing . She had

been with the Postal Service for 17 years . In 1980, she had been

absent for 4-1/2 months . She was required to provide documenta-

tion every month to justify her absence at that time .

She testified that the policy at the Columbus Post Office

for an extended absence was to give documentation and to update

it from time to time to show the- reason for the absence .

On cross-examination, the witness stated that she had

received a disciplinary action for her absence in 1980 . She had

grieved and lost, but the only issue was whether she could take

LWOP while she still had sick leave or annual leave available .

She wished to take LWOP and it was denied, and she had refused to

take sick leave or annual leave . She had been charged with AWOL .I -

She felt that that issue was not the same as the one here . She

did state that she had not been fired , she was only disciplined .

Discussion and Award

Position of the Postal Service

.It is the position of the Postal Service that Grievant had

not substantiated her absence by- acceptable evidence showing that

she was unable to perform her duties during her absence .

Her telephone calls could not be considered documentation .

Additionally, they did not go to her supervisor . Further, her

filing of a CA-2 form is not documentation, since that is a claim

for compensation, and has none of the data in it which absence

documentation requires .

Grievant's discharge was appropriate for two reasons . She

had been given ample time to provide written documentation as to

why she would be off work and when she would be back to work .

Further, discharge would have more of an impact than would

suspension, because a suspension would be meaningless in view of

the fact that Grievant was already off work and in a non-pay sta-

tus. Although she had the opportunity to do so, Grievant failed

to give the documentation which was required of her, and her dis-

charge should be sustained .

Position of the Union

The position of the Union is that Grievant had made numer-

ous phone calls to the Postal Service, so that it could not be

argued that she had abandoned her position or ignored the

extended absence letter .

Additionally, the evidence was clear that, in the past, a

charge of AWOL only warranted a letter of warning, whereas Griev-

ant was discharged . No one previously had ever been discharged

for such a violation .

Arbitrator's Discussion

It is my conclusion from the evidence presented that

Grievant did not provide the documentation called for by the

extended absence letter . Her telephone calls were insufficient,

since they were all oral . She did submit a document on April 19

which gave April 27 as a date for return to work . She could

rightly claim that she had documented that absence . However, the

absence from that point through all of May was not covered by any

documentation . Again, her oral phone calls during that period

were insufficient .

The issue which now remains to be determined - an issue

which was recognized as such by the Postal Service - is that of

whether Grievant's infraction merited discharge, or whether she

should have been given some lesser penalty .

Grievant's supervisor was asked if he had considered a

lesser penalty . He replied that he had, and had decided against

it on the ground that he felt it would "have no impact" .

The action of the supervisor in this regard is a violation

of Article 16, Section 1, of the National Agreement . The first

sentence of this Article states :

"In the administration of this Article, a basic principleshall be that discipline should be corrective in nature,rather than punitive ."

It has been held many times by other arbitrators that, for

discipline to be corrective, it must be progressive .

This directive from the National Agreement is mandatory .

It is not discretionary . Management does not have the choice as

to whether it will issue corrective discipline or not . It must

attempt to make discipline corrective . Here, Grievant's super-

visor decided for reasons which appeared to him to be valid that

corrective discipline would be useless . He does not , however,

have that discretion . He must attempt to issue corrective

discipline even though he believes that it will be of no use .

The supervisor felt that, even though a discharge had been

issued to her, Grievant had time to bring in the necessary docu-

entation . The misconception in this line of reasoning is in

thinking that an employee would believe that he or she had the

right to bring in the documentation after a discharge . In point

of fact, when Grievant was asked why she did not do so, she kept

saying, "because I was discharged" . In other words, she believed

that, once she was discharged, she had no recourse but to file a

grievance .

In effect , what the supervisor was trying to do was to use

discharge as a type of corrective discipline by anticipating

that, when the discharge was issued, Grievant would bring in the

documentation . However, using discharge as corrective discipline

in this fashion is a violation of the National Agreement, because

the end result is discharge rather than an opportunity for an

employee to correct errant conduct .

It should also be noted that many arbitration decisions

hold that post-discharge conduct of a grievant cannot be used to

set a discharge aside . A discharge cannot be judged in the light

of actions subsequent thereto . So Grievant ' s action in sub-

mitting documentation after her discharge can be of no con-

sequence . Grievant was correct in believing that, after

discharge, it was too late to act, even though her supervisor

apparently was willing to accept her documentation even then .

It is my conclusion that the Postal Service has violated

Article 16, Section 1, of the National Agreement by not issuing

corrective discipline to Grievant . Grievant therefore must be

reinstated .

It must now be decided whether Grievant is entitled to back

pay .

Grievant ' s own evidence was that she would have been unable

to work until June 3, according to her doctor' s statement .

Therefore, in no event would she have been entitled to back pay

prior to June 3 .

However, in addition to that, at the time of the hearing,

Grievant testified that she had had three back operations, and

was awaiting surgery for another operation . Her testimony

indicated :

"Q Miss Helms , during the time from 3-30 throughJune 2nd, were you able to work?

A I was not .

Q Could you tell the Arbitrator why?

A I have had three different surgeries for on-the-jobinjuries, and so my doctor was sending me to severalother doctors for surgery and stuff that he could notperform until , so that, he could put me in the hospitalfor my back for what he had to do . I had to go throughdifferent doctors first , before he can take care of me ;which I am still waiting to go in now ." (Emphasisadded .)

From this , I would infer that Grievant was anticipating

more surgery, and more hospitalization . I therefore conclude

that Grievant, even at the time of the hearing, was unable to

work . That being the case, Grievant ' s reinstatement will be

without back pay .

Award

The grievance is sustained . Grievant is ordered reinstated

without back pay,

be entitled .

but with all other benefits to which she would

The costs are assessed equally .

Dated this day of January , 1985 .•

S~w 9 dtcGERALD COHENArbitrator1221 Locust Street - Suite 600St . Louis, MO 63103(314) 231-2020

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